Issue:  Vol. 48 / No. 3 / 18 January 2018

Uncertainty for Prop 8 ballot repeal


Geoff Kors. Photo: Rick Gerharter
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With the 9th Circuit Court of Appeals decision this week to stay the resumption of same-sex marriages in California pending its review of the federal Proposition 8 trial court decision, some marriage equality advocates are wondering when they should return to the ballot box in an effort to repeal the same-sex marriage ban if they lose the court fight.

When a three-judge panel on Monday granted Prop 8 proponents a stay, it meant that same-sex couples who had been hoping to marry as soon as Wednesday night had to put those plans on hold. But in its order, the panel also issued an expedited briefing schedule that will see oral arguments in the case the first week of December in San Francisco.

Two of the big unknowns, of course, are when the 9th Circuit will issue its decision, and what that ruling will be. Both the timing and nature of the decision will determine whether the case, known as Perry v. Schwarzenegger, will be appealed to the U.S. Supreme Court. Some legal observers think if the case goes to the high court that will happen in 2012, a presidential election year and the same year that many marriage equality advocates had been looking to repeal Prop 8 at the ballot box.

Chief U.S. District Court Judge Vaughn Walker ruled August 4 that Prop 8 is unconstitutional but stayed his decision. On August 12 he lifted the stay but delayed the resumption of same-sex marriages to give Prop 8 proponents time to appeal. Immediately,, the proponents of Prop 8, filed an appeal with the 9th Circuit and requested Walker's decision be stayed while the case is appealed. It is that matter on which the panel ruled Monday, effectively halting same-sex nuptials for now.

Geoff Kors, executive director of Equality California, said in an interview this week that Prop 8 opponents may know the outcome of the Perry case in time to place a repeal initiative on the 2012 ballot. That is, if the final decision in Perry upholds Prop 8.

Kors stressed that the situation is very fluid right now.

"At this point, we could get a decision from the 9th Circuit in December, or, they could take several months," Kors said. "We could lose, there could be no appeal, we could win on standing."

By that, Kors was referring to what has become a key issue in Perry – whether the Prop 8 proponents even have legal standing to appeal Walker's decision. The 9th Circuit is expected to decide that question. [See story, page 1.]

"Clearly if we win at the 9th Circuit it makes sense not to go back to the ballot in 2012," Kors added. "But it's so fluid. If we lose 3-0 at the 9th Circuit that wouldn't bode well."

Kors said EQCA is looking at its priorities and right now, those include electing Jerry Brown governor and Kamala Harris attorney general in November.

"That is more important right now," Kors said.

Brown, currently the state attorney general, has refused to defend Prop 8 in court, a factor that is crucial to the standing question since no government official has stepped in to defend the anti-gay law. Governor Arnold Schwarzenegger has also declined to defend the law.

Harris, who has strong support from the LGBT community, has also pledged not to defend Prop 8 in court should she be elected. Her Republican opponent, Los Angeles County District Attorney Steve Cooley, has not made a similar pledge.

In fact, in a statement picked up by the Prop 8 Trial Tracker (a project of the Courage Campaign) Cooley said the proper role of an attorney general is to "enforce and defend the will of the people ..."

As far as marriage equality work, Kors said that EQCA's priority is to "continue to do the messaging work. That is critical."

Such work is important not only to help set the climate for the Prop 8 court case and to continue to build public support for same-sex marriage, it's also critical if marriage equality advocates win the Perry case.

"We don't want millions of people upset with us and thinking we harm kids," Kors said, referring to one of the biggest obstacles to broad support for marriage equality – that children will learn about gay and lesbian couples in school. That point was driven home in a report earlier this month that found parents with children under 18 living at home were swayed by the Yes on 8 campaign's ads in the fall of 2008, to the point that they voted for the initiative. Those ads hammered the message that children would read books about same-sex marriage and learn about it in classrooms.

Other legal observers think it might be prudent to move ahead with a 2012 repeal strategy.

"It wouldn't be a waste of effort if advocates continued to seek the repeal of Prop 8 at the ballot to legalize same-sex marriage," said attorney David Tsai, co-chair of the LGBT legal group Bay Area Lawyers for Individual Freedom. "A positive result at the ballot would be an alternative so that the U.S. Supreme Court might not hear an appeal of the Prop 8 trial decision; hence ensuring that marriage equality can exist in California."

Molly McKay, media director for Marriage Equality USA, said it was hard to predict what would happen in court. She urged people to continue reaching out and educating others.

MEUSA's seventh annual wedding march across the Golden Gate Bridge is coming up on September 26, she said.

"We need to keep marching, keep sharing our truth until legal equality is secured in every state and at the federal level," McKay said in an e-mail.

If there is no Prop 8 repeal on the 2012 ballot, the next statewide election would be in 2014. But Kors pointed out that EQCA has found in its research that younger voters tend to vote more in presidential elections, the next of which would be in 2016.

And Kors said that if advocates lose in the Perry case it could be detrimental.

"A loss at the Supreme Court could send the message that it's okay to discriminate against marriage," he said.

But he remains optimistic about Perry 's chances for success.

"Obviously, this is a very good court case," he said. "No one expected the 9th Circuit to expedite it this fast. I think the trick is that people don't get complacent again. You saw this with people expecting to get married Wednesday. You can't take anything for granted."

BALIF, along with the Bar Association of San Francisco, will hold an awards reception and a Prop 8 debrief Friday, August 20 from 5:30 to 7:30 p.m. at Keker and Van Nest, 710 Sansome Street in San Francisco. The event is geared toward attorneys but is open to interested people. There is no cost to attend but those planning to attend should register at

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